Workplace Class Action Webinar - Litigation Trends For 2011/2012 February 16, 2012 13097858

Workplace Class Action Webinar - Litigation

Trends For 2011/2012

February 16, 2012February 16, 2012

1309785813097858

Seyfarth Shaw LLP©2012 Seyfarth Shaw LLP2 |

Today’s Discussion Leaders

Lorie E. Almon

Gerald L. Maatman, Jr.

Ian H. Morrison


Today’s Discussion Points

What Is Hot In The Workplace Class Action World?

Key Trends & Developments In 2011 & 2012

Noteworthy Settlements & And What They Mean For Employers

Leading Decisions & How They Affect Defense Strategies In 2012

What Should Be In Your Compliance Tool Kit?


Some Key Terms For Today’s Discussion

Rule 23(a) Requirements

• Numerosity – The individuals who would comprise the class must be so

numerous that joinder of them all to the lawsuit would be impracticable.

• Commonality – There must be questions of law and fact common to the

proposed class.

• Typicality – The claims or defenses of the representative parties must be

typical of the claims and defenses of putative class members.

• Adequacy Of Representation – The representative plaintiffs and their

counsel must be capable of fairly and adequately protecting the interests of

the class.



Rule 23(b) Requirements

• (b)(1) – Decision as to one class member’s claim dispositive of all others

• (b)(2) – Injunctive/equitable relief

• (b)(3) – Money damages



Rule 23(b)(2) Requirements

• A class may be certified under Rule 23(b)(2) if the party opposing the class “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”

• Plaintiffs seeking to certify class actions under Rule 23(b)(2) are restricted to those cases where the primary relief sought is injunctive or declaratory in nature.

• Rule 23(b)(2) does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. Rule 23(b)(2) provides for a binding order on all class members without guarantees of personal notice and the opportunity to opt-out of the suit.


Some Key Terms For Today’s Discussion (Cont’d)

Rule 23(b)(3) Requirements• A class may be certified under Rule 23(b)(3) if the court finds that questions of

law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

• To qualify for certification under Rule 23(b)(3), a class must meet two additional requirements: [1] common questions must predominate over any questions affecting only individual members; and [2] class resolution must be superior to other available methods for the fair and efficient adjudication of the controversy.

• Rule 23(b)(3) applies to cases where the primary relief sought is money damages. Each class member is entitled as a matter of due process to personal notice and an opportunity to opt-out of the class action.


Introduction

The 2012 Annual Class Action Report

Overview Of 2011/2012 Developments – A Transformative Year!

Our Topics Today Relative To Employment Discrimination, Wage & Hour, Government Enforcement, And ERISA Class Actions



The Fallout From Dukes – Wholesale review of certification orders and growing judicial acceptance of new defense tactics to allow early challenges to the validity of class theories.

Evolving Class Certification Theories – “Re-booting” of certification theories by the plaintiffs’ class action bar and how this process is impacting defense strategies.

Class Arbitration Comes To The Forefront – After Stolt-Nielson and Concepcion, employers are increasingly utilizing workplace arbitration agreement to manage class action risks.



The Shifting Focus Of The EEOC – The EEOC’s shifting focus from one-off cases toward investigation and litigation of nationwide pattern or practice cases.

Intensified Level Of DOL Enforcement – DOL enforcement activities and the likely impact of the upcoming Supreme Court decision in Christopher, et al. v. SmithKline Beecham.

Rapid Changes In Theories And Defenses – Rule 23 issues are in flux, and “change” is a consistent and constant theme as class action issues evolve post-Dukes.


Key Trends In 2011/2012

The influence of the SCOTUS opinions in Wal-Mart v. Dukes and AT&T Mobility v. Concepcion on class certification rulings and class arbitration issues in 2011/2012.

The EEOC’s Systemic Program experienced major growth and focused on high-impact, big stakes litigation.

Continued economic challenges fueled an increase in class action and collective action litigation, as well as employment-related case filings.


Key Trends In 2011/2012

An increase in wage & hour class actions, especially those brought under the FLSA. In 2012, will the wave crest?

ERISA class actions took center stage in 2011; and 2012 is expected to be another key year on the ERISA front.

Given increasing problems certifying classes in 401(k) cases, watch for more ERISA class actions challenging defined benefit and welfare plan design and defined benefit investments.

Developments in Rule 23 and § 216(b) case law caused an evolution of new case theories, defense litigation strategies, and class certification approaches.


Headlines Of 2011 Relevant To Employers

Wal-Mart Stores, Inc. v. Dukes – in a 5-4 opinion, the Supreme Court held that Plaintiffs failed to satisfy the Rule 23(a) commonality requirement.

AT&T Mobility LLC v. Concepcion, et al. – subordinated state law to the Federal Arbitration Act (FAA) and allows the broad use of arbitration and class action waiver clauses in consumer and employment contracts.

End-Of-Year Statistics

• (i) Employment discrimination filings increased from 14,559 lawsuits in 2010 to 14,771 lawsuits in 2011

• (ii) More EEOC charges were filed in 2011 than ever before (99,947 charges)


Wal-Mart Stores v. Dukes

Impact of SCOTUS ruling on “class certification architecture”

Impact of SCOTUS ruling on damages recovery

Unanswered questions/issues inherent in the SCOTUS ruling

Anticipated “second generation issues” from Dukes


AT&T Mobility v. Concepcion

How SCOTUS ruling impacts class action waivers in the context of workplace arbitration agreements

Plaintiffs’ strategies to “work around” Concepcion – initial 2011 case law, and predictions for 2012


Pre-emptive Defense Strategies

The “second bite at the apple” defense tactic based on Dukes

Pilgrim v. Universal Health Care, 660 F.3d 943 (6th Cir. 2011) [Pages 528-529]

Plaisance v. Bayer Corp., 275 F.R.D. 270 (S.D. Ill. 2011) [Pages 530-531]


Leading Settlements – Employment Discrimination [Pages 11-12 of the CAR]

Top 10 Settlements Totaled $123.2 Million, A Decrease From $346.4 Million In 2010. The 5 Biggest Settlements In 2011 Were:

• Carter, et al. v. Wells Fargo Advisors, LLC (D.D.C.) - $32 Million

• Womack, et al. v. Dolgencorp., Inc. (N.D. Ala.) - $22 Million

• In Re Taylor Bean & Whitaker Mortgage Corp. (M.D. Fla.) - $15 Million

• Whitaker, et al. v. 3M Co. (Ramsey County, Minn.) - $12 Million

• Cronas, et al. v. Willis Group Holdings, Ltd. (S.D.N.Y.) - $11.6 Million


Leading Settlements – Wage & Hour [Pages 12-14 of the CAR]

Top 10 Settlements Totaled $221.1 Million, A Decrease From $336.5 Million In 2010. The 5 Biggest Settlements In 2011 Were:

• Davis, et al. v. JP Morgan Chase & Co. (W.D.N.Y.) - $42 Million

• In Re Oracle Wage & Hour Cases (Super. Ct. Alameda County, Cal.) - $35 Million

• Nash, et al. v. CVS Caremark Corp. (D.R.I.) - $34 Million

• In Re Tyson Foods, Inc. Fair Labor Standards Act Litigation (M.D. Ga. - $32 Million

• Hamilton, et al. v. Partners HealthCare System, Inc. (D. Mass.) - $17.3 Million


Leading Settlements – ERISA [Pages 14-15 of the CAR]

Top 10 Settlements Totaled $898.95 Million, Significantly Higher Than $424.4 Million In 2010. The 5 Biggest Settlements In 2011 Were:

• Mack Trucks, Inc. v. The International Union, United Automobile, Aerospace & Agricultural Implement Workers Of America, et al. (E.D. Pa.) - $525 Million

• Merkner, et al. v. AK Steel Corp. (S.D. Ohio) - $178.6 Million

• In Re Merck & Co. Inc. ERISA Litigation (D.N.J.) - $50 Million

• Neil, et al. v. Tribune Co. (N.D. Ill.) - $32 Million

• George, et al. v. Duke Energy Retirement Cash Balance Plan (D.S.C.) - $30 Million


Leading Settlements – Government Enforcement Actions [Pages 15-17 of the CAR]

Top 10 Settlements Totaled $65.078 Million, An Increase From $61.31 Million In 2010. The 5 Biggest Settlements In 2011 Were:

• EEOC v. Verizon Delaware LLC (D. Md.) - $20 Million

• Solis, et al. v. Mattingly (E.D. Ky.) - $11 Million

• In Re USProtect Corp. (D. Md.) - $8 Million

• EEOC v. International Profit Associates, Inc. (N.D. Ill.) - $8 Million

• New York State Department Of Labor v. Lenny’s - $5.1 Million


Significant Decisions – EEOC Enforcement Litigation

EEOC v. Bloomberg L.P., 778 F. Supp. 2d 458 (S.D.N.Y. 2011) [Pages 41-42]

EEOC v. Freeman, 2011 U.S. Dist. LEXIS 8718 (D. Md. Jan. 31, 2011) [Pages 49-50]

EEOC v. JP Morgan Chase Bank, 2011 U.S. Dist. LEXIS 90789 (S.D. Ohio July 6, 2011) [Pages 65-66]

EEOC v. Kaplan Higher Education Corp., 790 F. Supp. 2d 619 (N.D. Ohio 2011) [Pages 67-68]

EEOC v. Kaplan Higher Education Corp., 2011 U.S. Dist. LEXIS 57829 (N.D. Ohio May 27, 2011) [Pages 68-69]


Significant Decisions – EEOC Enforcement Litigation

EEOC v. Peoplemark, Inc., 2011 U.S. Dist. LEXIS 38696 (W.D. Mich. Mar. 31, 2011) [Pages 70-71]

EEOC o/b/o Serrano, et al. v. Cintas Corp., 2011 U.S. Dist. LEXIS 86228 (E.D. Mich. Aug. 4, 2011) [Pages 73-74]

EEOC v. AutoZone, Inc., 2011 U.S. Dist. LEXIS 128927 (C.D. Ill. Nov. 8, 2011) [Pages 74-75]

EEOC v. Global Horizons, Inc., 2011 U.S. Dist. LEXIS 127734 (D. Haw. Nov. 2, 2011) [Pages 89-90]


Significant Decisions – Employment Discrimination

Location, Location, Location, And Location Is All Important

The U.S. District Courts For The Northern District Of California And The Southern District Of New York – And The Second & The Ninth Circuits – Remain “Ground Zero” For Plaintiff-Friendly Rulings

The California & New York Nexus To Significant Filings And Rulings


Significant Decisions Of 2011 – Employment Discrimination, Cont’d.

United States v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011) [Pages 26-27]

Bell, et al. v. Lockheed Martin Corp., 2011 U.S. Dist. LEXIS 143657 (D.N.J. Dec. 14, 2011) [Pages 27-28]

McReynolds, et al. v. Merrill Lynch, 2011 U.S. Dist. LEXIS 14360 (N.D. Ill. Feb. 14, 2011) [Pages 31-32]

Ellis, et al. v. Costco Wholesale Corp., 657 F.3d 970 (9th Cir. 2011) [Pages 36-37]


Significant Decisions In 2011 – Wage & Hour

MacGregor, et al. v. Farmers Insurance Exchange, 2011 U.S. Dist. LEXIS 80361 (D.S.C. July 22, 2011) [Page 151]

Creely, et al. v. HCR ManorCare, Inc., 2011 U.S. Dist. LEXIS 77170 (N.D. Ohio July 1, 2011) [Pages 162-163]

Boyd, et al. v. Alutiiq Global Solutions, LLC, 2011 U.S. Dist. LEXIS 88656 (N.D. Ill. Aug. 8, 2011) [Pages 172-173]

Ervin, et al. v. OS Restaurant Services, 632 F .3d 971 (7th Cir. 2011) [Pages 177-178]

Cruz, et al. v. Dollar Tree Stores, Inc., 2011 U.S. Dist. LEXIS 73938 (N.D. Cal. July 8, 2011) [Pages 201-202]

Christopher v. SmithKline Beechman Corp., 635 F.3d 383 (9th Cir. 2011) [Pages 264-265]


Significant Decisions In 2011 – ERISA

Cigna Corp. v. Amara, et al., 131 S.Ct. 1866 (2011) [Pages 399-400]

Pipefitters Local 636 Insurance Fund, et al. v. Blue Cross Blue Shield, 654 F.3d 618 (6th Cir. 2011) [Pages 350-351]

Groussman, et al. v. Motorola, Inc., 2011 U.S. Dist. LEXIS 134769 (N.D. Ill. Nov. 15, 2011) [Pages 353-354]

Spano v. Boeing Co., 633 F.3d 574 (7th Cir. 2011) [Pages 356-357]

Williams, et al. v. Rohm & Haas Pension Plan, 658 F.3d 629 (7th Cir. 2011) [Pages 381-382]

In Re Citigroup ERISA Litigation, 2011 U.S. App. LEXIS 21463 (2d Cir. Oct. 19, 2011) [Page 394]


Other Rule 23 Decisions Of Significance In 2011

Smith, et al. v. Bayer Corp., 131 S. Ct. 2368 (2011) [Pages 583-584] (claim preclusion)

Rothman, et al. v. General Nutrition Corp., 2011 U.S. Dist. LEXIS 134515 (C.D. Cal. Nov. 17, 2011) [Page 548] (adequacy of representation)

Artis, et al. v. Deere & Co., 276 F.R.D. 348 (N.D. Cal. 2011) [Page 616] (class discovery)

Rodriguez, et al. v. National City Bank, 2011 U.S. Dist. LEXIS 101367 (E.D. Pa. Sept. 8, 2011) [Pages 648-649] (settlement approval issues)

Damasco, et al. v. Clearwire Corp., 2011 U.S. App. LEXIS 23093 (7th Cir. Nov. 18, 2011) [Pages 653-654] (mootness issues in class actions)


Significant State Law Class Action Rulings In 2011

Whitaker, et al. v. 3M Co., Case No. C4-04-12239 (Ramsey County, Minn. April 6, 2011). [Pages 403-404]

Braun, et al. v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa. Super. Ct. 2011). [Pages 412-413]

Brown, et al. v. Ralphs Grocery Co., 197 Cal. App. 4th 489 (Cal. App. 2d Dist. 2011). [Pages 422-423]

Harris, et al. v. Superior Court, 2011 Cal. LEXIS 13237 (Cal. Dec. 29, 2011). [Pages 425-426

Pirjada, et al. v. Superior Court, 201 Cal. App. 4th 1074 (Cal. App. 2d Dist. 2011). [Pages 437-438]

Cunningham, et al. v. Abbott, 2011 Ky. App. LEXIS 24 (Ky. Ct. App. Feb. 4, 2011). [Pages 465-466]

Henry, et al. v. Dow Chemical Co., Case No. 03-47775 (Cir. Ct. of Saginaw County, Mich. July 18, 2011). [Page 474]


How Can You MinimizeYour eDiscovery Risks In The Class Action Context?

Know what data your company has

Know who “owns” your company’s data

Get a handle on your key custodians early in litigation

Preserve liberally; collect and produce judiciously

Be proactive and drive e-discovery – don’t wait for plaintiffs or the government to drive it for you


What Should Be In YourERISA Compliance Tool Kit?

Robust, ongoing fiduciary oversight

Fiduciary education and training

Disclosure, disclosure, and more disclosure

“Hardwire” investment options especially employer stock

Periodically review investment offerings and strategies, as well as service provider fees.


What Should Be In YourWage & Hour Compliance Tool Kit?

Train managers of non-exempt employees on wage & hour compliance

Periodically audit for "off the clock" issues through timekeeping systems (e.g., Kronos) and payroll reports

Review closely any independent contractor relationships and document them properly

Pay extra attention to litigation trends with respect to particular job classifications and industries


Corporate Tool Kit IssuesFor Employment Discrimination

Ensure robust policies to ban discrimination and encourage internal appeals

Ensure objective elements in pay-setting and performance evaluations

Preemptively, in a privileged way, analyze adverse impact

Recruit diverse candidate pools

Avoid quotas


How To Order The Workplace Class Action Report

The 2012 Workplace Class Action Report is available to clients of the firm and interested corporate counsel. To request a free copy of the report, please e-mail your request to [email protected].

mailto:[email protected]


Questions

Documents

Workplace Class Action Webinar - Litigation Trends For 2011/2012 February 16, 2012 13097858